Dasrath Singh vs State Of Chhattisgarh

Sanjay K. Agrawal, J

(1) The three accused-appellants herein have filed this criminal appeal under Section 374(2) of Cr.P.C. calling in question the impugned judgment of conviction and order of sentence dated 21.02.2014, passed by the Court of learned 4th Additional Sessions Judge to the Court of 1st Additional Sessions Judge, Bilaspur (Chhattisgarh) in Sessions Trial No.167/2013 (State of CG vs. Dasrath Singh and others), whereby they have been convicted for offence under Section 302 read with Section 34 of IPC and sentenced to undergo life imprisonment with fine of Rs.1,000/- and, in default of payment of fine, additional rigorous imprisonment for one year each.

(2) The case of the prosecution, in short, is that on 25.03.2013, at about 10:30, at Village Shivtaria within the ambit of Police Station Kota, the accused-appellants herein in furtherance of their common object, assembled together and abused Sukhdev Singh (hereinafter referred to as “deceased”) and further threatened him to kill and also committed ‘marpeet’ with him by means of ‘danda’, due to which he suffered grievous injuries and succumbed to death on 26.03.2013 during the course of treatment, and, thereby, committed offences under Section 294, 506 (Part-II) and 302/34 of IPC.

(3) The further case of the prosecution, in brief, is that on 26.03.2013, deceased- Sukhdev Singh appeared before the police of Police Station Kota and lodged report that on 25.03.2013 at about 10:30, appellant No.03 came and taken him to Shivlakhara, where appellants No.01 & 02 were already standing/present and, thereafter, on a dispute that deceased- Sukhdev Singh had stolen gold necklace of Baba Baiga from Durga Temple, the accused-appellants herein abused him with filthily words and committed ‘marpeet’ with him by means of ‘danda’ and further flew from the spot by threatening him to kill, which incident was seen by Niranjan (PW-15) and took him to the village. On the report so lodged by the deceased himself, the police registered FIR vide Ex.P/08 against the appellants herein for offences under Sections 294, 506, 323/34 of IPC. The deceased was sent for medical examination and his MLC report is Ex.P/02. Since, during the course of investigation, deceased- Sukhdev Singh died, offence under Section 302 of IPC has also been added against the appellants.

(4) Thereafter, spot map was prepared vide Ex.P/01. Marg intimation (Ex.P/11) was also registered by the police. Inquest proceedings were conducted vide Ex.P/10 and summons under Section 175 of Cr.P.C. were sent vide Ex.P/09. The dead-body of deceased was sent for postmortem examination and, in the postmortem examination report (Ex.P/19), conducted by Dr. M.K. Samuel (PW-12), it was opined that the cause of death of deceased is hypovolemic shock due to injury over right lung and internal haemorrhage and nature of death is homicidal. Thereafter, accused-appellants were arrested vide Ex.P/26 to P/28 respectively and their memorandum statements were recorded vide Ex.P/13, P/14 & P/17 respectively. Pursuant to the memorandum statements of all appellants, wooden sticks/‘danda’ were seized vide Ex.P/15, P/16 & P/18 respectively. The aforesaid seized wooden sticks were sent for query to expert/doctor and vide query report (Ex.P/04) it has been opined that the injuries caused by the deceased, which are mentioned in his MLC report (Ex.P/02), can be caused by said seized wooden sticks. But, the aforesaid seized wooden sticks were not sent for FSL examination for the reason best known to the prosecution. Thereafter, statements of witnesses were recorded and, after due investigation, the police filed charge-sheet in the Court of Judicial Magistrate First Class, Kota and, thereafter, the case was committed to the Court of Sessions. The appellants/accused abjured their guilt and entered into defence by submitting that they are innocent and have been falsely implicated.

(5) The prosecution in order to prove its case examined as many as 18 witnesses and exhibited 31 documents, whereas the appellants-accused has not examined any witness, but exhibited 02 documents in support of their defence.

(6) The learned trial Court after appreciating the oral and documentary evidence available on record proceeded to convict the appellants for offence under Section 302 read with Section 34 of IPC and sentenced them as mentioned herein-above, against which this appeal has been preferred by the appellants-accused questioning the impugned judgment of conviction and order of sentence.

(7) Mrs. Indira Tripathi, learned counsel appearing for the appellants submits that the learned trial Court is absolutely unjustified in convicting the appellant for offence under Section 302/34 of IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. She further submits that deceased was beaten by accused-appellants as he had committed theft of gold ornaments from the temple. Infact, number of villagers had beaten the deceased by hand, fist and wooden sticks, as a result of which deceased suffered injuries and was admitted to hospital for treatment and died during the course of treatment. She further submits that as per MLC report of the deceased, no serious/grievous injuries on the vital part of the deceased are available. Even if the case of the prosecution is accepted, at best the appellants can be convicted under Section 323 or 325 of IPC. Further, there are major contradictions and omissions in the statements of various prosecution witnesses. She relied upon a decision rendered by this Court in the matter of Mihir Gope and others v. State of Jharkhand (2021) 2 SCC 726  to bolster her submissions. Hence, the present appeal deserves to be allowed and appellants are liable to be discharged from the said offence.

(8) Per-contra, Mr. Afroz Khan, learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. The learned trial Court has rightly convicted the appellants for offence under Section 302/34 of IPC, as they in furtherance of their common object, abused the deceased, threatened him and assaulted him by means of ‘danda’, due to which he suffered grievous injuries and died. Thus, the present appeal deserves to be dismissed.

(9) We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.

(10) The first and foremost question is as to whether the death of the deceased was homicidal in nature, which the learned trial Court has recorded in affirmative by taking into consideration the postmortem report (Ex.P/19), wherein it has been opined that cause of deceased of deceased is hypovolemic shock due to injury over right lungs and internal haemorrhage and nature of death is homicidal, which is duly proved by the statement of Dr. M.K. Samuel (PW-12), who has conducted the postmortem of the dead-body of the deceased. Accordingly, taking into consideration the postmortem report (Ex.P/19) and the statement of Dr. M.K. Samuel (PW-12), we are of the considered opinion that the death of deceased is homicidal in nature, as the same is correct finding of fact based on evidence and same is neither perverse nor contrary to the record. We hereby affirm the said finding.

(11) Now, the next question would be, whether the accused-appellants herein are the perpetrators of the crime in question ?

(12) In order to answer this question, considering the evidence available on record, we will consider the case of appellant No.01 separately to that of appellants No.02 & 03 one by one.

As regards: Appellant No.1 (Dasrath Singh)

(13) The learned trial Court has held the appellant No.01 to be perpetrator of the crime in question by relying upon the testimony of eye-witness, namely, Niranjan (PW-15) and memorandum statement of appellant No.01 recorded vide Ex.P/13, pursuant to which wooden stick/’danda’ has been seized vide Ex.P/15. A careful perusal of the statement of Niranjan (PW-15) would show that in Para-02 he has only named appellants No.02 & 03 by stating that when he reached to the Temple, appellant No.02- Peela Ram and appellant No.03- Dujay Singh were assaulting deceased by means of ‘danda’ and he did not name appellant No.01- Dasrath Singh at any point of time that appellant No.01 was also assaulting deceased on the date of offence. As such, the eye-witness, namely, Niranjan (PW-15) has not supported the case of the prosecution so far as appellant No.01 is concerned that appellant No.01- Dasrath Singh has assaulted deceased by means of ‘lathi’ or ‘danda’, therefore, the testimony of eye-witness is of no use for the prosecution qua appellant No.01. Though, pursuant to memorandum statement of the appellant No.01, ‘danda’ has been seized vide Ex.P/15, but it has neither been sent for FSL examination nor any FSL report has been brought on record by the prosecution to hold that the said ‘danda’ has been used as a weapon by the appellant No.01 in committing murder of the deceased or any blood stains were available on it.

(14) The Supreme Court in the matter of Balwan Singh vs. State of Chhattisgarh and another (2019) 7 SCC 781 held that if the recovery of bloodstained articles is proved beyond reasonable doubt by the prosecution, then it may be sufficient if the prosecution shows that the blood found on the articles is of human origin though, even though the blood group is not proved because of disintegration of blood and held in Para-24 as under:

“24. In the instant case, then, we could have placed some reliance on the recovery, had the prosecution at least proved that the blood was of human origin. As observed supra, while discussing the evidence of PWs 9 and 16, the prosecution has tried to concoct the case from stage to stage. Hence, in the absence of positive material indicating that the stained blood was of human origin and of the same blood group as that of the accused, it would be difficult for the Court to rely upon the aspect of recovery of the weapons and tabbal, and such recovery does not help the case of the prosecution.”

(15) In the instant case, admittedly a ‘lathi/danda’ was allegedly seized from the possession of the appellant No.01 pursuant to his memorandum statement recorded vide Ex.P/13, but witness to the said memorandum statement (Ex.P/13), who is also eye-witness to the incident, namely, Niranjan (PW-15) has not supported the case of the prosecution and further there is no evidence available with regard to the fact that human blood is found on the said seized ‘danda/lathi’ by way of FSL report etc., therefore, such a recovery of ‘danda/lathi’ is of no help to the prosecution. As such, the learned trial Court is absolutely unjustified in convicting the appellant No.01- Dasrath Singh for offence under Section 302/34 of IPC.

As regards: Appellant No.2 (Peela Ram) and Appellant No.03 (Dujay Singh)

(16) The learned trial Court has also held the appellants No.02 & 03 to be perpetrators of the crime in question by relying upon the testimony of eye-witness, namely, Niranjan (PW-15) and their memorandum statements recorded vide Ex.P/14 & P/17 respectively, pursuant to which wooden sticks/’danda’ have been seized vide Ex.P/16 & P/18 respectively. Niranjan (PW-15), who is eye-witness, in his statement before the Court has clearly stated that the appellants No.02 & 03 were assaulting deceased by means of ‘lathi’ on the date of incident, due to which he suffered grievous injuries and died. Though, Niranjan (PW-15) was subjected to some length of cross-examination, but nothing has been extracted to hold that he has not seen the incident or he is telling lie to the Court in order to falsely implicate the appellants No.02 & 03 herein. As such, he is a reliable witness and his testimony can be relied upon so far as appellants No.02 & 03 are concerned, more particularly, when pursuant to memorandum statements of the appellants No.02 & 03, wooden sticks/’danda’, which were used by them as weapon in commission of offence in question, have been seized vide Ex.P/16 & P/ 18 respectively. Accordingly, based on aforesaid facts and evidence available on record, the learned trial Court has rightly held the accused-appellants No.02 & 03 to be perpetrators of the crime. We hereby affirm the said finding.

(17) The aforesaid finding bring us to the next question for consideration, which is whether the learned trial Court is justified in convicting the appellants No.02 & 03 for offence under Section 302/34 of IPC or, as contended by learned counsel for the appellants their case would fall within the purview of Sections 323 or 325 of IPC or otherwise ?

(18) It is the case of the prosecution that deceased- Sukhdev Singh had stolen gold necklace of Baba Baiga from Durga Temple, pursuant to which, on fateful date, the appellants are alleged to have assaulted him by means of wooden stick/’danda’, which incident was witnessed by Niranjan (PW-15). Niranjan (PW-15) in his statement before the Court has clearly stated that he has seen appellants No.02 & 03 assaulting deceased by means of ‘danda’ on the date of incident. Further, Dr. N.K. Samuel (PW-12), who has conducted postmortem of dead-body of deceased and gave PM report (Ex.P/19), has clearly stated before the Court that deceased had suffered injuries over the kidney and had also stated that deceased’s kidney was slightly ruptured and in the right lung also blood had collected and death was on account of hypovolemic shocks due to injury on right lung and kidney and nature of death is homicidal. As such, the argument raised by the learned counsel for the appellants that only offence under Section 323 or 325 of IPC would be made out against the accused persons in the instant case is clearly untenable in view of the medical evidence of Dr. M.K. Samuel (PW-12), who has proved the PM report (Ex.P/19). Therefore, the aforesaid argument deserves to be and is hereby rejected. Thus, the judgment of Supreme Court relied upon by the learned counsel for the appellants in the matter of Mihir Gope (supra) is clearly distinguishable under the facts of the present case.

(19) Considering the facts and circumstances of the present case, in our considered opinion, the case of the appellants No.02 & 03 is covered within Exception 4 to Section 300 of IPC vis-a-vis culpable homicide not amounting to murder and their conviction can be converted to Section 304 Part-I or Part-II of IPC.

(20) The Supreme Court in the matter of Arjun v. State of Chhattisgarh (2017) 3 SCC 247 has elaborately dealt with the issue and observed in paragraphs 20 and 21, which reads as under :-

“20. To invoke this Exception 4, the requirements that are to be fulfilled have been laid down by this Court in Surinder Kumar v. UT, Chandigarh [(1989) 2 SCC 217 : 1989 SCC (Cri) 348], it has been explained as under :(SCC p. 220, para 7)

“7. To invoke this exception four requirements must be satisfied, namely, (I) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor its I relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly.”

Further in Arumugam v. State [(2008) 15 SCC 590 : (2009) 3 SCC (Cri) 1130], in support of the proposition of law that under what circumstances Exception 4 to Section 300 IPC can be invoked if death is caused, it has been explained as under : (SCC p. 596, para 9)

“9. …. '18. The help of exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the “fight” occurring in Exception 4 to Section 300 IPC is not defined in the Penal Code, 1860. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two or more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression “undue advantage” as used in the provisions means “unfair advantage”.

(21) In the matter of Arjun (supra), the Supreme Court has held that if there is intent and knowledge, the same would be case of Section 304 Part-I of IPC and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then same would be a case of Section 304 Part-II IPC.

(22) Further, the Supreme Court in the matter of Rambir vs. State (NCT of Delhi) (2019) 6 SCC 122 has laid down four ingredients which should be tested to bring a case within the purview of Exception 4 to Section 300 of IPC, which reads as under:

“16. A plain reading of Exception 4 to Section 300 IPC shows that the following four ingredients are required:

(i) There must be a sudden fight;

(ii) There was no premeditation;

(iii) The act was committed in a heat of passion; and

(iv) The offender had not taken any undue advantage or acted in a cruel or unusual manner.”

(23) Reverting to the facts of the present case in light of above principles of law laid down by their Lordships of the Supreme Court, it is quite vivid that there was no premeditation on the part of the appellants No.02 & 03 to cause death of the deceased, but only on account of a dispute that deceased- Sukhdev Singh had allegedly stolen gold necklace of Baba Baiga from Durga Temple, the appellants No.02 & 03 herein committed ‘marpeet’ with him by means of ‘danda’, which incident was seen by Niranjan (PW-15) and due to which deceased suffered grievous injuries and succumbed to death on the next day during the course of treatment at hospital. As such, there was no premeditation on the part of the appellants No.02 & 03 to cause death of the deceased and because of sudden dispute, under anger and in heat of passion, the appellants No.02 & 03 assaulted deceased and caused his death. However, looking to the injuries sustained by deceased, the appellant No.02 & 03 must have had knowledge that such injuries inflicted by them on the body of the deceased would likely to cause his death, as such, this is a case which would fall within the purview of Exception 4 to Section 300 of IPC, as the act of the appellants No.02 & 03 herein completely satisfies the four necessary ingredients of Exception 4 to Section 300 IPC i.e. (i) there must be a sudden fight; (ii) there was no premeditation; (iii) the act was committed in a heat of passion and (iv) the appellant had not taken any undue advantage or acted in a cruel or unusual manner and, therefore, the conviction of the appellants No.02 & 03 under Section 302/34 of IPC is altered/converted to Section 304 (Part-II)/34 of IPC.

(24) In view of the aforesaid discussions, this Court came to the following conclusions:

(i) the impugned judgment of conviction and order sentence dated 21.02.2014, passed by the learned trial Court, so far as it relates to appellant No.01- Dasrath Singh, whereby he has been convicted for offence under Section 302/34 of IPC and sentenced to undergo life imprisonment, is hereby set aside. He is acquitted from the said charge. Since, appellant No.01 is already on bail, he need not to surrender. However, his bail bonds shall remain in force for a period of six months in view of provision contained in Section 437-A of Cr.P.C.

(ii) the conviction of the appellants No.02 & 03, namely, Peela Ram and Dujay Singh for offence punishable under Section 302/34 of IPC as well as the sentence of life imprisonment awarded to them by the learned trial Court is hereby set aside. Considering that there was no premeditation on the part of the appellants No.02 & 03 to cause death of the deceased but the injuries caused by him were sufficient in the ordinary course of nature to cause death, the appellants No.02 & 03 are convicted for offence punishable under Section 304 Part-II read with Section 34 of IPC and sentenced to undergo rigorous imprisonment for 04 years, but the fine sentence imposed by the learned trial Court shall remain intact. Since, the appellants No.02 & 03 are on bail and had remained in jail for a period of 2 ½ years only, they are directed to surrender before the learned trial Court forthwith to serve out the remaining jail sentence.

(25) This criminal appeal is allowed so far as it relates to appellant No.01 and stands party allowed to the extent indicated herein-above so far as it relates to appellants No.02 & 03.